94 N. J. L. N. J. Brick Co. v. A. M. Krantz Co. NEW JERSEY BRICK COMPANY, RESPONDENT, v. A. M. KRANTZ COMPANY, APPELLANT. Submitted December 8, 1919-Decided March 1, 1920. On appeal from the Supreme Court, in which the following per curiam was filed: "The plaintiff sold defendant a large quantity of brick at $7 per thousand. Before the deliveries were completed, the plaintiff notified defendant that it would raise the price to $7.50 per thousand. The defendant objected, but as the brick was of peculiar character not procurable in the market, he accepted subsequent deliveries until the contract was fully performed, and then paid in full at the higher price under protest. He continued buying brick, and more than two years afterward, when sued for a small balance on a later sale, undertook to counter-claim for the alleged overpayment. "Clearly, the payment was voluntary. However embarrassing it may have been for the defendant to be without the brick, he cannot now rely on that situation as amounting to duress; when he paid the money he had already had the brick and was no longer subject to embarrassment. He was perfectly free to pay or not, and if he did not pay, to defend on the ground that the plaintiff was entitled only to the original price. He chose not to do so. He now says he paid this extra price because he had agreed to do so in order to secure prompt delivery. If this new contract was valid he was bound by it and the payment was only payment of what he owed. If it was not valid, either because without consideration or because of duress, he should not have paid. He could not in any event create a new cause of action in his favor by failing to assert his rights. "Let judgment be entered in this court, affirming the judgment below, with costs." Rohan v. American Sugar Refining Co. 94 N. J. L. For the appellant, Edward F. Merrey. For the respondent, Roe & Tompkins. PER CURIAM. The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court. For affirmance-THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 13. For reversal--None. BRIDGET ROHAN, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ALEXANDER ROHAN, DECEASED, RESPONDENT, v. AMERICAN SUGAR REFINING COMPANY, A CORPORATION, APPELLANT. Submitted December 8, 1919-Decided March 1, 1920. On appeal from the Supreme Court, in which the following per curiam was filed: "This is an action under the Death act. The plaintiff's decedent, Alexander Rohan, was engaged in hauling ashes from the defendant company's plant in Washington street, in Jersey City. This plant is adjacent to a body of water known as the gap, and Washington street runs down to the water's edge. At the time of the accident the defendant was engaged in unloading drums of sugar from a freight car standing on a track which ran through the street at this point. It had been engaged in this work for two days prior to the accident. The 94 N. J. L. Rohan v. American Sugar Refining Co. unloading was done by means of a heavy rope which was fastened to the car, then twisted around the drum and carried to another drum on the far side of the street. When this was done the drum was rolled out of the car on the skids, and then down the skids to the street. The plaintiff's decedent while driving along Washington street ran into this rope and was so injured that he died. "The only questions argued before us are whether the court should have ordered a nonsuit; and whether there should have been a verdict directed. "The contention is, that the court erred in refusing to nonsuit or direct a verdict, first, because there was no evidence of negligence on the part of the defendant company, and second, because of the contributory negligence of the decedent. "We think both of these questions were for the jury. Prima facie the defendant had no legal right to occupy the whole of the roadway of the street for something like three days and thus interfere with the public user thereof. But, assuming that such right existed, so far as the decedent was concerned, the company was bound to exercise it in such a way as not to jeopardize people traveling on the street; and this duty they owed to the decedent. It is at least doubtful under the evidence whether they gave him warning or took any other steps for his protection. Clearly, therefore, we think the question of the negligence of the defendant was one to be determined by the jury. "Whether the decedent was negligent or not depended upon whether he used reasonable care for his own safety. He had been at work at this place for some time hauling ashes, and there was evidence to show that whenever he came to the place where the rope was stretched across the street the employes of the defendant company lowered it in order to enable him to pass by in safety. This being so, it was for the jury to say whether he had a right to assume that when his truck drew near to the obstacle the same course of conduct would be followed; and whether, in so assuming, he acted as a reasonably prudent man would have done under the same conditions. "We conclude, therefore, that both the motion to nonsuit and the motion to direct a verdict were properly refused and that the judgment under review should be affirmed." For the appellant, Edwards & Smith and Walter L. Glenney. For the respondent, Alexander Simpson. PER CURIAM. The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court. For affirmance-THE CHANCELLOR, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, TAYLOR, GARDNER, ACKERSON, JJ. 10. For reversal-BERGEN, J. 1. MARTIN ROM, APPELLANT, v. FRANK HUBER, RE SPONDENT. Argued November 26, 1919-Decided March 8, 1920. On appeal from the Supreme Court, whose opinion is reported in 93 N. J. L. 360. For the appellant, Isidore Kalisch. For the respondent, Theodore McC. Marsh. 1 1 The only circumstance that requires remark from us is the plaintiff's contention that the defendant was liable for the negligence of his servant, and that in such a case the rule of Schnatterer . Bamberger is not applicable. The plaintiff's proposition is legally correct. The answer is that given in substance by the trial judge. There was no evidence that the soap on the floor-if, indeed, there was soap-was due to the negligence of any servant of the defendant. The evidence was that soap gets on the floor of the scrub room where patrons of the bath are rubbed by the attendants and might, by contact with the feet, be sent to the door of the steam room where Rom fell. There is nothing in this to show negligence. The occasional fall of pieces of soap on the floor is inevitable, and as patrons went from one room to another we cannot assume that the only persons whose feet might have sent the soap through the door, if that was the fact, were employes of the defendant. There is no evidence that it was impelled by the foot of the defendant, or his agents, or that it might not have been by customers of the bath. Let the judgment be affirmed, with costs. For affirmance-THE CHANCELLOR, SWAYZE, TRENCHARD, PARKER, BERGEN, WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, ACKERSON, JJ. 10. For reversal-KALISCH, TAYLOR, JJ. 2. |